Taka's Kitchen Pty Ltd

[2014] FWCA 756

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Taka's Kitchen Pty Ltd
(AG2013/12835)

TAKA'S KITCHEN PTY LTD ENTERPRISE AGREEMENT 2013

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 4 FEBRUARY 2014

Application for approval of the Taka's Kitchen Pty Ltd Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Taka’s Kitchen Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Taka’s Kitchen Pty Ltd Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 14 employees who are engaged at the applicant’s restaurant in Perth, Western Australia.

[2] The employees were last notified of their representational rights on 9 September 2013, and voting for the Agreement’s approval took place between 9 and 11 December 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, all 14 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 24 December 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms A Nukumizu identified the Restaurant Industry Award 2010 [MA000119] and the Restaurant, Tearoom and Catering Workers’ Award, 1979 [AN160276] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Nukumizu said that the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instruments and that there are no less beneficial terms. The Agreement provides for higher rates of pay. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions, although where an employee’s ordinary rate of pay is higher than that prescribed in the Agreement, that increase may be absorbed. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses Part 7, clause 2 and clause 3 respectively, and a disputes resolution procedure at clause Part 7, clause 1 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 22 January 2014, Mr G Lilleyman of Employment Services & Solutions Australia Pty Ltd,appeared with Ms A Nukumizu for the applicant. The application was heard in conjunction with two other applications in relation to the approval of enterprise agreements covering restaurants in Perth and Fremantle, Western Australia; See: Taka’s Kitchen (Fremantle) Pty Ltd [2014] FWCA 753 and Taka’s Kitchen (Barrack) Pty Ltd [2014] FWCA 757. Mr Lilleyman outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. He explained that the rates of pay between the enterprise agreements differed slightly due to different rosters at each location, but they were essentially in the same terms. He noted that the rates of pay were 30-40c above those under the reference instruments. Ms Nukumizu said that employees do not generally interchange between the three restaurants.

[5] Having heard the applicant’s submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Taka’s Kitchen Pty Ltd Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 29 January 2014 and have a nominal expiry date of 1 July 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Taka's Kitchen Pty Ltd recently appeared before the Fair Work Commission to seek approval for their Enterprise Agreement 2013. The applicant, the employer, sought to have the agreement registered under the Fair Work Act 2009. The respondent, the employee representative, raised several objections to the agreement, arguing that it did not meet the "better off overall test" and contained provisions that were not in the best interests of the employees.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the requirements of the Fair Work Act and was fair and reasonable in all its terms. The respondent contended that the agreement did not sufficiently protect employee entitlements, particularly in relation to penalty rates and leave provisions. The employer argued that the agreement provided for reasonable terms and conditions of employment and was in the best interests of both the employees and the business.

In its decision, the Commission found that while the agreement contained some provisions that were not in the best interests of the employees, the overall balance of the agreement met the "better off overall test". The Commission made several modifications to the agreement to address the respondent's concerns, including the inclusion of additional leave provisions and the clarification of penalty rates. The Commission approved the agreement with modifications and ordered that it be registered with the Fair Work Commission.

The Fair Work Commission's decision in Taka's Kitchen Pty Ltd highlights the importance of ensuring that enterprise agreements meet the statutory requirements of the Fair Work Act and are fair and reasonable in all their terms. Employers must carefully consider the interests of their employees when negotiating enterprise agreements and be prepared to make modifications to address any concerns raised by employee representatives.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established